pleadings ( i.e., the documents framing the issues), and based on
findings and conclusions that are “anchored in the pleadings,
evidence, positions or submissions of any of the parties”. Otherwise, they are “inherently unreliable” and “procedurally unfair,
or contrary to natural justice”. When a judge steps outside of the
case as it was “developed by the parties” to decide a given issue,
the parties are deprived of the opportunity to make submissions
and to “address that issue in the evidence”. See Rodaro, at
paras. 60-63; Labatt Brewing, at paras. 5-7; 460635 Ontario Ltd.
v. 1002953 Ontario Inc., [1999] O.J. No. 4071, 127 O.A.C. 48
(C.A.), at para. 9; A-C-H International Inc. v. Royal Bank of
Canada, [2005] O.J. No. 2048, 254 D.L.R. (4th) 327 (C.A.).

[40] The circumstances of this case affirm those very risks
and lead to the second concern, the inherent unreliability of the
findings.

The inherently unreliable findings

[41] With respect to the oral agreement and equitable assign-ment, the application judge held that( i) each of Mr. and Ms. Moore had an equitable interest inthe proceeds of the policy from the time it was taken outin 1985;

( ii) the oral agreement in 2000 took the form of an equitable
assignment by Mr. Moore to Ms. Moore of his equitable
interest in the proceeds in return for her agreement to pay
the ongoing premiums;

( iii) if he were wrong in finding that Ms. Moore had an equitable
interest in the proceeds of the policy from 1985, with the
result that Mr. Moore had the entire equitable interest in
the proceeds until 2000, the effect of the 2000 oral agreement was to assign his entire interest in the policy to her at
that time, in exchange for her commitment to pay the ongoing premiums.

[42] The bases for these conclusions are set out in the applica-tion judge’s reasons, at paras. 18-23. In summary, he found that( i) the Moores “jointly” took out the policy in 1985 to providefor Ms. Moore and the children in the event of his deathand, because the premiums were paid out of their jointaccount, they each had an equitable interest in the proceedswhich “[a]s a practical matter . . . took the form of a right todetermine the beneficiary of the Policy” (para. 18);